Republican Senators Question Merrick Garland: Missives From an Alternative Universe

By Benjamin Wittes
Tuesday, February 23, 2021, 1:50 PM

The confirmation testimony of Judge Merrick Garland Monday before the Senate Judiciary Committee was blessedly lacking in drama. With one quasi-exception discussed below, it lacked any standoffs between senators and the nominee over questions to which the senators demanded answers that the nominee could not, in good conscience, give them.

Garland is the closest thing American political and legal life offers in this polarized time to a figure above politics. And his performance before the committee was, consistent with that, without notable flaws. He was careful and struck all the right notes. He also managed to say a lot about what he wants to do at the Justice Department, even while he scrupulously observed the proprieties of the judge, who cannot comment on pending or impending cases, and of the not-yet-confirmed official, who has not been briefed on investigations that are in any event themselves pending. The proceedings became moving at times—as when Garland described how his family had fled anti-Semitism in Europe and how this informs his aspirations as attorney general. And the hearing was actually informative about his plans for the department.

Partly because Republican senators have no intention of meaningfully opposing Garland’s nomination, they were on their best behavior. There was relatively little grandstanding of the type these hearings often see. Senators by and large used their time to ask questions, rather than to make speeches. And some of the exchanges between Garland and the Republican senators were genuinely interesting and illuminating. In particular, Ben Sasse of Nebraska used his time to discuss with the attorney general designee the nature of executive discretion and the reasons for the decline in recent decades of congressional power in the American system of separated powers. It’s a good conversation and well worth a listen:

Yet there was a subtext to Monday’s hearing, polite and dignified though it was, which Lawfare Managing Editor Quinta Jurecic aptly characterized in a tweet shortly after Garland began his testimony: “Questions Republicans are asking in the Garland hearing are like missives from an alternative universe in which Bill Barr never happened.”

This alternative universe coexisted weirdly with the day’s gentility. Normally, the alternative world manifests itself in the form of angry shouting and gesticulating by members of Congress, not with polite questions about law and policy to a consensus nominee. But this time, Garland calmly fielded questions from Sen. Marsha Blackburn of Tennessee about the great intelligence threat and threat to American democracy from China—questions that conspicuously omitted the threat from a certain other large country that more aggressively attacks American democracy. The committee’s ranking minority member, Chuck Grassley, made a point of putting localized violence in Portland, Oregon, against a federal courthouse on the same plane as an organized assault on Congress as it is counting electoral votes—an assault encouraged by the president of the United States—and suggesting that the government is better prepared to deal with white supremacist violence than it is to deal with antifa. And any number of Republican senators talked as though the problem of politicization of the Justice Department reached its zenith under Attorney General Eric Holder and that the FBI had been “weaponized” against Republicans under Director James Comey—and acted like Bill Barr had either never been attorney general or had been a noble figure at the department’s helm.

Garland, in his capacity as a witness before the committee, could not do what he surely would have done in his capacity as a judge had an advocate so grossly mischaracterized reality.

A nominee who wishes to be confirmed, after all, would be ill advised to say to a senator who has a vote on the matter: “Excuse me, where in the record is there evidence of that?”

He would be imprudent as well to declare: “Your premise is wrong, senator. There is no evidence suggesting that the FBI was weaponized against Republicans—and there was an explicit finding by the inspector general that the Russia investigation was properly predicated.”

He would be impolitic indeed, headed as he is for a swift and easy confirmation, to ask a senator inclined to support him: “Are you seriously suggesting, sir, that demonstrations in Portland over the summer pose a terrorism threat on a par with what we saw at the Capitol on Jan. 6?”

And a nominee with a healthy sense of self-interest is probably wise to refrain from pointing out to Blackburn that it was Russia, not China, that conducted an active-measures campaign with respect to American democracy.

This bizarre spectacle reached peak toxicity with the repeated demand from Republican senators that Garland give assurances that U.S. Attorney John Durham will be allowed to finish his investigation of the Russia probe. The premise of this demand is that Barr, in his confirmation hearing, promised to let Special Counsel Robert Mueller complete his work. Durham, like Mueller, is a special counsel. Can Garland give a similar commitment?

Near the outset of the hearing, Grassley raised the issue:

Grassley: At Barr’s hearing, he stated the following [with respect to] Mueller’s investigation: “It is vitally important the special counsel be allowed to complete his investigation.” Also at that same hearing, Senator Feinstein asked: “Will you commit to providing Mr. Mueller with the resources, funds and time needed to complete his investigation?” Attorney General Barr answered Senator Feinstein with one word: “Yes.” With respect to Special Counsel Durham’s investigation, I expect that he will be allowed to complete his investigation. If confirmed, will you commit to providing Special Counsel Durham with the staff, resources, funds, and time needed to thoroughly complete investigation?

Garland: Senator, I don’t have any information about the investigation. As I sit here today, another one of the very first things I will have to do is speak with Mr. Durham to figure out how his investigation is going. I understand that he has been permitted to remain in his position. And sitting here today, I have no reason to think that that was not the correct decision.

Grassley: And I suppose that would be an answer that [he] would only be removed for cause then? Would that be your position?

Garland: I really do have to have an opportunity to talk with him. I have not had that opportunity. As I said, I don’t have any reason from what I know now, which is really very little, to make any determination on that ground. But I don’t have any reason to think that he should not remain in place.

Grassley: If confirmed, would you commit to publicly releasing Special Counsel Durham’s report just like the Mueller report was made public?

Garland: So, senator, I am a great believer in transparency. I would have to talk with Mr. Durham and understand the nature of what he has been doing and the nature of the report, but I am very much committed to transparency and to explaining Justice Department decision-making.

The matter came up again and again—from Sen. Ted Cruz and from Sen. Tom Cotton and from Blackburn and from Grassley again. And Garland stood his ground: He has no reason to doubt the propriety of the decision to leave Durham in place, but he is not going to make any decisions or make any commitments without having a chance to talk to Durham and understand the full parameters of the issue.

There is, let me say, more to the answer to Grassley’s question than Garland gave him. The impolitic, totally-honest answer to this question would have sounded something like the argument I made a couple of months ago on Lawfare, when it first emerged that Barr had used the special counsel regulations to saddle his successor with Durham. In that piece, I anticipated with some precision the specific question Republicans would press Garland on at his hearing:

Your predecessor, Attorney General Barr, committed during his Senate confirmation hearing to letting Bob Mueller finish his work, saying that Mueller could only be terminated for good cause and that it was unimaginable to him that Mueller would behave in such a fashion as to justify his dismissal. Are you prepared today to make a similar commitment regarding Special Counsel Durham: that you will only terminate him for good cause?

And I anticipated as well something fairly close to the answer Garland gave:

Senator, I have immense respect for the special counsel regulations and intend to abide by them. At the same time, I have no idea what Mr. Durham is investigating or what his plans are. It would be inappropriate for me to comment on a pending matter on which I have not even been briefed and about which I know only what the press has reported. I will always support the important investigative and prosecutorial work of the Justice Department.

Here is the answer, based in part on the argument I made in that article, that part of me wishes Garland had given this week:

Senator, I am not prepared to give a commitment with respect to the Durham investigation because, candidly, I have no idea what John Durham is looking at. The comparison to the Mueller investigation and Barr’s commitment with respect to Mueller is quite inapt. It was very public what Mueller was investigating, as he had brought any number of indictments both against Russian figures and against domestic figures. There had been a number of pleas. And Mueller was known at the time of Barr’s confirmation hearing to be wrapping up his probe.

What’s more, the president had spent a great deal of energy threatening to fire Mueller, and the attorney general nominee himself had written a lengthy memo challenging one of the basic premises of the investigation and suggesting that it be curtailed. The president had fired Barr’s predecessor over his recusal from the Russia investigation, and had fired the FBI director over the Russia probe too. So there was every reason to worry that the attorney general might actually seek to shut down a legitimate investigation that had been very productive and to which both he and the president who appointed him were publicly hostile.

Here the circumstances are quite different. The Durham investigation began not as a criminal investigation but as an internal review, and to this day, nobody outside of the department has the faintest idea what supposed violations of law Durham is investigating at all, aside from the narrow issue of a falsified email by a single FBI lawyer—a matter resolved by a guilty plea. The matters before Durham have already been the subject of an intense and exhaustive inspector general investigation, and the matter he prosecuted concerning the falsified email is entirely derivative of that investigation. There are no public facts that suggest criminal wrongdoing in the origin of the investigation or in its general conduct, much less in the conduct of the Mueller investigation. And to whatever extent that there may be residual criminal questions about the specific handling of the Carter Page FISA application, I’m not sure why that requires a special counsel with a broad mandate.

What’s more, I have concerns that this broad mandate was specifically engineered, and Mr. Durham was given an expansive reporting requirement, in order to give him authority to write a public report on the conduct of the original Russia investigation.

So I have questions and concerns. And I don’t think this situation is similar at all to the one Barr faced with respect to Mueller.

But here’s the commitment I am prepared to make: I will meet with Mr. Durham and get briefed on the investigation early in my tenure. And I will ensure that he has the support he needs to finish all of the elements of his investigation that properly warrant the attention of federal prosecutors.

Garland, of course, could not say anything like this—if he even agrees with me on the matter or has thought enough about the Durham investigation to have an instinct on the subject. He apparently does intuit enough difference between the Mueller and Durham investigations that he was unwilling to give commitments parallel to those that Barr gave with respect to Mueller. But the nature of the Senate hearing and the need to have an ongoing relationship with the Senate prevents him from looking senators in the eye, as he would in his judicial capacity if one of them posed an argument this silly in court, and calling them on a premise that comes from an alternative universe.

Garland will be confirmed. He will be confirmed with many, perhaps most, Republican votes. And he will then decide what to do about Durham—a matter on which he has left himself room to maneuver. The answer to this question is tricky, for reasons I outlined at length in December 2020.

Also tricky will be navigating the Justice Department through the fantasy world of the Trumpist Cinematic Universe—a universe in which efforts to politicize the department appear as efforts at depoliticization and, vice versa, a universe in which a violent terrorist group called “Antifa” poses a threat comparable to or exceeding that of white supremacists, a world in which Russia barely exists but in which China looms large, Comey looms larger, and the FBI targets Republicans. It’s a universe that, as Garland’s hearing shows, keeps sending its missives into ours.